INDEMNIFICATION
AGREEMENT
THIS
AGREEMENT is made this
day of
, 200___, between Ciena Corporation, a Delaware corporation (the
“Company”), and
(the “Indemnitee”), with respect to the following
facts:
A
The Company’s Restated Certificate of Incorporation limits
the personal liability of the Company’s directors to the
Company or its stockholders for monetary damages arising from a
breach of fiduciary duty, as provided therein, to the fullest
extent permitted by the Delaware General Corporation Law (the
“DGCL”);
B.
The Company’s Restated Certificate of Incorporation and
Bylaws require the Company to indemnify its directors, officers,
employees and agents, as provided therein, to the fullest extent
permitted by the DGCL;
C.
The Company’s Restated Certificate of Incorporation provides
that Expenses incurred by a director or officer in defending a
civil or criminal action, suit or proceeding may be paid by the
Company as the Board of Directors deems appropriate, provided such
director or officer delivers an undertaking to repay such amount if
it shall ultimately be determined that such person is not entitled
to indemnification;
D.
The Company recognizes Indemnitee’s need for protection
against personal liability and that increases in corporate
litigation potentially subject the Indemnitee to greater risk in
his or her service of the Company;
E.
In order to induce Indemnitee to serve, or to continue to serve the
Company in an effective manner, the Company wishes to provide the
Indemnitee with the benefits contemplated by this
Agreement;
F.
The contractual assurances made herein are supplemental to, and in
furtherance of any indemnification or advancement of Expenses
provided in the Company’s Restated Certificate of
Incorporation, Restated Bylaws, or subject to D&O Insurance, if
any, obtained by the Company; and
G.
As a result of the provision of such benefits, Indemnitee has
agreed to serve or to continue to serve the Company.
NOW,
THEREFORE , the parties hereto do hereby agree as
follows:
1.
Definitions. The following terms, as used herein, shall have the
following respective meanings:
a. Beneficial
Ownership: shall be determined, and a Person shall be the
“Beneficial Owner” of all securities that such Person
is deemed to own beneficially,
pursuant to
Rule 13d-3 under the Securities Exchange Act of 1934, as
amended, or any successor rule or statutory provision (the
“Exchange Act”).
b. A
Change in Control: shall be deemed to have occurred if:
(A)
any Person (other than (i) the Company or any Subsidiary, or
(ii) any employee stock ownership or other employee benefit
plan of the Company or any Subsidiary or any trustee of or
fiduciary with respect to any such plan when acting in such
capacity) is or becomes, after the date of this Agreement, the
Beneficial Owner of 20% or more of the total voting power of the
Voting Shares;
(B)
during any period of two consecutive years, individuals who at the
beginning of such period constitute the Board of Directors of the
Company and any new director whose election or appointment by the
Board of Directors or nomination or recommendation for election by
the Company’s stockholders was approved by a vote of at least
two-thirds of the directors then still in office who either were
directors at the beginning of the period or whose election or
nomination for election was previously so approved, cease for any
reason to constitute a majority thereof;
(C)
the stockholders of the Company approve a merger or consolidation
of the Company with any other corporation, other than a merger or
consolidation that would result in the Voting Shares of the Company
outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into Voting
Shares of the surviving entity) at least 80% of the total voting
power represented by the Voting Shares of the Company or the
surviving entity outstanding;
(D)
the stockholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale or
disposition by the Company of all or substantially all of the
Company’s assets; or
(E)
there is a change in control of a nature that would be required to
be reported in response to Item 5.01 of Form 8-K promulgated
under the Exchange Act as that Item is in effect as of the date
hereof or any subsequent Item of Form 8-K that replaces
Item 5.01.
c. Claim:
means any threatened, pending or completed action, suit,
arbitration or proceeding, or any formal or informal inquiry or
investigation, whether brought by or in the right of the Company,
by a third party or otherwise, that Indemnitee in good faith
believes might lead to the institution of any action, suit,
arbitration or proceeding, whether civil, criminal, administrative,
investigative or other, or any appeal therefrom.
d. D&O
Insurance: means any valid directors’ and officers’
liability insurance policy maintained by the Company for the
benefit of the Indemnitee, if any.
e.
Determination: means a determination, and “Determined”
means a matter that has been determined based on the facts known at
the time, by: (i) a
majority vote
of a quorum of disinterested directors, or (ii) if a quorum is
not obtainable, or even if obtainable, if a quorum of disinterested
directors so directs, by independent legal counsel in a written
opinion, or, in the event there has been a Change in Control, by
the Special Independent Counsel (in a written opinion) selected by
Indemnitee as set forth in Section 6, or (iii) a majority
of the disinterested stockholders of the Company, or (iv) a
final adjudication by a court of competent jurisdiction.
f. Excluded
Claim: means any payment for Losses or Expenses in connection with
any Claim: (i) based upon or attributable to
Indemnitee’s gaining in fact any personal profit or personal
advantage to which Indemnitee is not entitled; or (ii) for the
return by Indemnitee of any illegal payments to Indemnitee; or
(iii) for an accounting of profits in fact made from the
purchase or sale by Indemnitee of securities of the Company within
the meaning of Section 16 of the Exchange Act, or similar
provisions of any state law; or (iv) for acts or omissions not
made in good faith or that result from Indemnitee’s
intentional misconduct or knowing violation of law; or (v) the
payment of which by the Company is not permitted by applicable law,
including Section 145 of the DGCL.
g. Expenses:
means any reasonable expenses incurred by Indemnitee as a result of
a Claim or Claims made against Indemnitee for Indemnifiable Events
including, without limitation, attorneys’ fees, retainers,
court costs, transcript costs, expert witness fees, administrative
costs or fees, costs relating to the payment of any bond reasonably
necessary and all other costs, expenses and obligations (including
reasonable travel expenses) paid or incurred in connection with
investigating, defending, being a witness in or participating in
(including on appeal), or preparing to defend, be a witness in or
participate in any Claim relating to any Indemnifiable
Event.
h. Fines:
means any fine, penalty or, with respect to an employee benefit
plan, any excise tax or penalty assessed with respect
thereto.
i. Indemnifiable
Event: means any event or occurrence, occurring prior to or after
the date of this Agreement, related to the fact that Indemnitee is
or was a director, officer, employee, trustee, agent or fiduciary
of the Company, or is or was serving at the request of the Company
as a director, officer, employee, trustee, agent or fiduciary of
another corporation, partnership, joint venture, employee benefit
plan, trust or other enterprise, or by reason of anything done or
not done by Indemnitee, including, but not limited to, any breach
of duty, neglect, error, misstatement, misleading statement,
omission, or other act done or wrongfully attempted by Indemnitee,
or any of the foregoing alleged by any claimant, in any such
capacity.
j.
Losses: means any amounts or sums that Indemnitee is legally
obligated to pay as a result of a Claim or Claims made against
Indemnitee for Indemnifiable Events including, without limitation,
damages, judgments and sums or amounts paid in settlement of a
Claim or Claims, and Fines.
k. Person:
means any individual, partnership, corporation, business trust,
joint stock company, trust, unincorporated association, joint
venture, governmental authority or other entity of whatever
nature.
l. Potential
Change in Control: shall be deemed to have occurred if (A) the
Company enters into an agreement, the consummation of which would
result in the occurrence of a Change in Control; (B) any
Person publicly announces an intention to take or to consider
taking actions which if consummated would constitute a Change in
Control; or (C) the Board of Directors adopts a resolution to
the effect that, for purposes of this Agreement, a Potential Change
in Control has occurred.
m. Reviewing
Party: means any appropriate person or body consisting of a member
or members of the Company’s Board of Directors or any other
person or body appointed by the Board (including the Special
Independent Counsel referred to in Section 6) who is not a
party to the particular Claim for which Indemnitee is seeking
indemnification.
n. Subsidiary:
means any corporation of which a majority of any class of equity or
voting security is owned, directly or indirectly, by the
Company.
o. Trust:
means the trust established pursuant to Section 7
hereof.
p. Voting
Shares: means any issued and outstanding shares of capital stock of
the Company entitled to vote generally in the election of
directors.
2.
Indemnification and Advancement of Expenses.
a. In
consideration of, and as an inducement to, the Indemnitee’s
rendering valuable services to the Company, the Company agrees that
in the event Indemnitee is or becomes a party to or witness or
other participant in, or is threatened to be made a party to or
witness or other participant in, a Claim by reason of (or arising
in part out of) an Indemnifiable Event, the Company will indemnify
Indemnitee to the fullest extent authorized by law, against any and
all Expenses and Losses (including all interest, assessments and
other charges paid or payable in connection with or in respect of
such Expenses and Losses) of such Claim, whether or not such Claim
proceeds to judgment or is settled or otherwise is brought to a
final disposition, subject in each case, to the further provisions
of this Agreement.
b. In
the event Indemnitee is or becomes a party to or witness or other
participant in, or is threatened to be made a party to or witness
or other participant in, a Claim by reason of (or arising in part
out of) an Indemnifiable Event, Expenses incurred by Indemnitee
shall be paid by the Company in advance of the final disposition of
such action, suit or proceeding. The Company shall advance Expenses
to Indemnitee, on an unsecured and interest free basis, to the
fullest extent authorized by the DGCL.
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